Reinhardt v. Albuquerque Public Schools Bd.

• Decision Date: 16 February 2010
• Docket Number: No. 09-2005.,09-2005.
• Citation: 595 F.3d 1126
• Parties: Janet REINHARDT, Plaintiff-Appellant, v. ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION; Linda Dunstan, in her official and personal capacity; Janice Quintana, in her official and personal capacity; Isabel Trujillo, in her official and personal capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

595 F.3d 1126

Janet REINHARDT, Plaintiff-Appellant, v. ALBUQUERQUE PUBLIC SCHOOLS BOARD OF EDUCATION; Linda Dunstan, in her official and personal capacity; Janice Quintana, in her official and personal capacity; Isabel Trujillo, in her official and personal capacity, Defendants-Appellees.

No. 09-2005.

United States Court of Appeals, Tenth Circuit.

February 16, 2010.

Gail Stewart (and Laurel Nesbitt of Steven Granberg, Attorney at Law, on the briefs), Albuquerque, NM, for Plaintiff-Appellant.

Alex Walker of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Defendants-Appellees.

Before TACHA, HOLLOWAY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Janet Reinhardt appeals from the grant of summary judgment on both her Rehabilitation Act and First Amendment retaliation claims. On appeal, Ms. Reinhardt makes three major claims which, she argues, require reversal of the district court's orders. Ms. Reinhardt contends that: (1) the district court incorrectly ruled that her protected speech — filing a state level complaint — was made pursuant to her official job duties rather than as a private citizen; (2) the district court erred in finding that she had not shown a materially adverse employment action; and (3) the district court erred in concluding that Defendant met its burden in coming forth with a legitimate, nondiscriminatory reason for its action or that Ms. Reinhardt had not met her burden in establishing a genuine issue as to pretext. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.

Background

Ms. Reinhardt has been employed as a speech-language pathologist (SLP) by Defendant-Appellee Albuquerque Public Schools Board of Education (APS) since 1996. Aplt.App. 85. During the time relevant to this action, she worked full-time at Rio Grande High School. Aplt.App. 85. SLPs with a full-time caseload receive a 1.0 contract ("standard contract"). APS grants a 0.2 contract increase if an SLP's caseload supports such an increase ("extended contract").

Starting in 1998, Ms. Reinhardt regularly complained to APS administrators that she was not receiving accurate and timely caseload lists of students. Aplt.App. 153, 170 (Oct. 13, 2004 letter), 199-200. She believed the inaccurate lists were leading to qualified special education students not receiving speech and language services. Aplt.App. 199-200. Inaccurate lists also had the potential to affect SLPs' contract status and salaries. Aplt.App. 202-203. As she was unable to get APS to respond to her repeated complaints about the inaccurate caseload lists and corresponding deprivation of services to qualified students, Ms. Reinhardt consulted an attorney and filed an Individuals with Disabilities Education Act (IDEA) complaint with the New Mexico Public Education Department (NMPED) against APS on October 3, 2005 ("state complaint"). Aplt.App. 100-07, 204. The state conducted an investigation and ordered APS to take corrective action. Aplt.App. 106-07.

In addition to complaining about APS's failure to deliver services to special education students at Rio Grande High and filing the state complaint, Ms. Reinhardt also advocated for the rights of a particular high school student ("John Doe"). During the 2000-2001 school year, Ms. Reinhardt began advocating for him to receive a neuropsychological evaluation. Aplt.App. 199. He did not receive the evaluation until summer of 2003. Aplt. App. 18. After the evaluation, she advocated for him to receive specialized reading instruction during the 2003-2004 school year. Aplt.App. 148, 199, 203.

Before the 2004-2005 school year, Ms. Reinhardt previously had received extended contracts. Aplt.App. 150. On August 17, 2004, Ms. Reinhardt was again granted an extended contract for the upcoming school year "based on the belief that she would be serving more than a full caseload." Aplt.App. 160, 304. On August 24, 2004, the assistant principal at Rio Grande High assigned Ms. Reinhardt to work with only 9th grade students for the 2004-2005 school year. Aplt.App. 163, 200. The remainder of the students were divided between the other two SLPs at Rio Grande High. Aplt.App. 163. Ms. Reinhardt's initial caseload list comprised only six students, well below a full-time caseload. Aplt.App. 170, 282. Ms. Reinhardt believed that 25 to 30 9th grade students should have been receiving services. Aplt. App. 201. On September 28, 2004, APS reduced her to a standard contract because her caseload did not support an extended contract. Aplt.App. 168, 305. Ms. Reinhardt requested a contract increase based on her caseload on January 18, 2006 and was denied. Aplt.App. 171.

In June 2007, Ms. Reinhardt brought suit against APS for, inter alia, First Amendment retaliation pursuant to 42 U.S.C. § 1983 and for retaliation in violation of § 504 of the Rehabilitation Act (§ 504), 29 U.S.C. § 794, based on her advocacy for the rights of disabled students. The district court granted APS's motion for summary judgment on Ms. Reinhardt's § 504 retaliation claim. Aplt. App. 333-34. The court concluded that she had not met her burden in establishing a prima facie case of retaliation because she failed to show that APS subjected her to any materially adverse action. Aplt. App. 333. The court further found that even if Ms. Reinhardt had established a prima facie case, APS provided legitimate, non-discriminatory reasons for the actions at issue, and Ms. Reinhardt failed to demonstrate that APS's reasons were pretextual. Aplt.App. 333. The district court also granted APS summary judgment on Ms. Reinhardt's First Amendment retaliation claim. Aplt.App. 239. Applying Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the court held that Plaintiff's communications were made pursuant to her official duties and were therefore not protected by the First Amendment. Aplt.App. 238-39.

Discussion

We review the district court's grant of summary judgment de novo, applying the same standards as the district court. See Jarvis v. Potter, 500 F.3d 1113, 1120 (10th Cir.2007). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). "Unsupported conclusory allegations do not create a genuine issue of fact." L & M Enters., Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir.2000). With respect to the § 504 claim, we review the establishment of a prima facie case of retaliation de novo. In First Amendment cases, we have "an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271, 1276 (10th Cir.2007) (internal quotation marks and citations omitted).

A. Section 504 Retaliation Claim

The standard for retaliation claims under the Rehabilitation Act is the same as the standard for retaliation claims under the Americans with Disabilities Act (ADA). Jarvis, 500 F.3d at 1125. In the absence of direct evidence, Ms. Reinhardt may rely upon the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). She can establish a prima facie case by showing: (1) that she engaged in protected activity; (2) that she suffered a materially adverse action by APS either after or contemporaneous with her protected activity; and (3) a causal connection between the protected activity and the adverse action. Proctor v. UPS, 502 F.3d 1200, 1208 (10th Cir.2007) (applying Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), in the context of ADA retaliation claims); Jarvis, 500 F.3d at 1125. Thereafter, APS may produce evidence of a legitimate, nonretaliatory reason for the adverse action. Jarvis, 500 F.3d at 1125 (internal citation omitted). If APS does so, the burden of production shifts back to Ms. Reinhardt to show that the proffered reason is pretextual. Id.

1. Protected Activity

At the summary judgment stage, Ms. Reinhardt presented three types of protected activity: (1) her advocacy for John Doe; (2) her longstanding complaints about APS's failure to deliver services to special education students at Rio Grande High by failing to provide SLPs with timely and accurate caseload lists; and (3) filing the state complaint. Aplt.App. 187-88. APS did not dispute that Ms. Reinhardt engaged in protected activity when she advocated for John Doe beginning in 2001, Aplt.App. 125, but APS argued that Plaintiff's internal complaints about inaccurate caseload lists and her state complaint relate to her First Amendment retaliation claim and not her § 504 claim. Aplt.App. 207-08. The district court recognized the factual dispute between the parties regarding the time frame of the protected activity, but it did not resolve the issue, nor did it address which activities were protected. Aplt.App. 333. APS does not further address the issue of Ms. Reinhardt's protected activities in its brief.

All three forms of Ms. Reinhardt's advocacy on behalf of disabled students constitute protected activity under the Rehabilitation Act. Section 504 and the ADA prohibit discrimination against any individual "because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act." 42 U.S.C. § 12203(a) (incorporated by reference by 29 U.S.C. § 794(d)). The school is required to provide a "free appropriate public education" by providing education and related services that "are designed meet individual educational needs of handicapped persons as adequately as the needs of...